In the leaked Supreme Court draft opinion overturning a half-century of abortion jurisprudence, Justice Samuel Alito repeatedly argued that this difficult issue should be decided by the people through their elected representatives. Such calls for democracy to work, however, should be looked at with great skepticism by the American people, given how often and how destructively the Roberts Court has injected itself into our elections in ways that drastically favor the rich and the powerful over the poor and the racially marginalized—in other words, in ways that favor the Republican Party. The Roberts Court has made democracy much harder to take seriously in the United States of America.
Although we are all still talking and writing about the leaked opinion, important elections are just months away. It is important to understand how the Roberts Court has warped our political processes in ways that affect the question of abortion and other significant issues.
In two major cases, the Roberts Court all but gutted one of the most important election laws in American history. In 2013, in Shelby County v. Holder, the five conservatives on the Court struck down Section 5 of the Voting Rights Act, which restricted states with long histories of racially discriminatory voting rules from adopting new election procedures without the consent of either a three-judge court or the United States Department of Justice. The law, which was passed by a unanimous Senate and signed by a Republican president, was the most important barrier to election changes that discriminated on the basis of race. Not surprisingly, immediately after the Shelby County decision, several states enacted harsh voting restrictions that made it harder for the poor and people of color to vote.
Not content to just strike down Section 5 of the Voting Rights Act, the conservative justices also narrowly interpreted a different part of the law designed to help litigators smoke out racially discriminatory election measures. In Brnovich v. Democratic National Committee, the Court made it much more difficult for plaintiffs to prove that a state has engaged in racial discrimination when enacting new voting laws. As Justice Kagan said in dissent, “What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness.…What is tragic is that the Court has damaged a statute designed to bring about the end of discrimination in voting.”
To the general public and even many lawyers and law professors, the most glaring example of judicial aggression by the Roberts Court, when it comes to elections, is Citizens United v. FEC. If the Court had simply held that Citizens United, a non-profit ideological organization, had the right to show its movie about Hillary Clinton shortly before a national election, the decision would have made sense. Instead, the Roberts Court announced that corporations have the same free speech rights as natural persons. That overbroad, anti-originalist holding is unwarranted, but the reality is that Citizens United is not even close to the worst campaign finance opinion of the Roberts Court. In a series of cases, the Court has refused to uphold reasonable laws designed to reduce the corrosive effects of money on our elections.
In McCutcheon v. FEC, Chief Justice Roberts wrote the majority opinion for the conservatives in a 5-4 case striking down limits on the total amount a person can give to political candidates or political action committees. Not surprisingly, the Republican National Committee was a plaintiff in the case, as was a wealthy private citizen who wanted to give more money than the relevant federal law allowed. The Court erroneously equated spending on politics with speaking about politics and also held that the only legitimate government interest that can support campaign finance reform is stopping direct quid pro quo corruption, a ruling unsupported by constitutional text or history.
The Roberts Court also struck down the so-called Millionaires’ Amendment, which Congress passed to alter contribution limits of political candidates if their opponents spent more than 350,000 dollars of their own money. In yet another 5-4 case split along partisan lines, the justices stopped Congress from trying to limit money spent on political campaigns.
And in perhaps the most anti-democratic of all the Roberts Court campaign finance decisions, the five conservatives on the Court struck down an Arizona state constitutional amendment offering but not requiring the acceptance of public financing for political campaigns in return for the candidate not raising her own money. If the candidate refused the money but her opponent accepted it, Arizona would provide some money to the opponent to equalize the campaign, The Court rejected this noble effort by the people of Arizona to make their elections fairer. As Justice Kagan again complained in dissent, “No fundamental principle of our Constitution backs the Court’s ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object—a government responsive to the will of the people.…Truly, democracy is not a game.”
In addition to these cases, the Roberts Court has allowed states to enact voter ID laws despite there being no evidence that in-person voting fraud is an issue. The conservatives have also selectively prevented lower courts from addressing racial discrimination in election procedures because of something known as the “Purcell Principle,” which on its surface says lower courts should not require changes too close to elections but in reality has been used, according to numerous election experts, to again assist states who engage in racial discrimination when designing their election laws.
The Court has also ruled that federal courts have no authority to review partisan gerrymandering claims (which often have a racial motivation), but the Court will not allow states to use racial criteria to make up for generations of racial prejudice and discrimination in elections. That combination of cases strongly helps the Republican Party, which in turn, leads to more anti-abortion legislation.
Overturning fifty years of abortion cases so that democracy can thrive by a Court that has done everything in its power to make it more difficult for the poor, the weak and the marginalized to vote has more than a hollow ring. It is the worst kind of hypocrisy and may well be the tragic legacy of the Roberts Court.
Eric Segall is a professor of law at the Georgia State University College of Law and the author of Supreme Myths.
Suggested citation: Eric Segall, The Roberts Court, Unfair Elections and Abortion, JURIST – Academic Commentary, May 16, 2022, https://www.jurist.org/commentary/2020/05/eric-segall-roberts-court-elections-abortion/.
This article was prepared for publication by Hayley Behal, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
